The Price of Transatlantic Friendship

It is no secret that the international mobility regime is riddled with inequalities. A particularly salient example of this dynamic is the availability of visa-free travel, which greatly benefits certain passport holders but is largely excluded for others. While citizens of EU Member States often profit from privileged mobility arrangements, there are in fact significant differences between nationals of EU Member States. Western and Northern Europeans often find themselves at the top-end of any ranking indicating the availability of visa-free travel (see here and here), whereas the nationals of other Member States, especially those geographically located in the south-east do not benefit from similarly vast-ranging visa exemptions.

A prominent example of a third state that treats EU Member States differently in this respect is the United States. While the citizens of most EU Member States enjoy visa-free travel to the US, citizens of Bulgaria, Romania and Cyprus do not. This has been a source of contention between the US and the EU for a considerable time. Following the Commission’s repeated refusal to activate the reciprocity mechanism in EU visa law to remedy this inequality in access to visa-free travel, the European Parliament asked the Court of Justice to determine whether the Commission was under an obligation, in such a situation, to retaliate against the US. In early September, the Court answered in the negative. Despite the difference in treatment between EU citizens, the Commission was not compelled to activate the visa reciprocity mechanism. The Court’s reasoning indicates its awareness of the sensitive political nature that visa retaliation vis-á-vis the US implies, especially at a time when the Trump administration had come to reconsider its partnership with the EU more fundamentally. Yet, by acknowledging the Commission’s wide discretion in this regard, the Court misses the opportunity to instill a sense of urgency in working towards equal treatment of EU citizens. This threatens to perpetuate a situation in which the advantages of supranational integration in the context of the Schengen acquis are permanently withheld from nationals of Romania, Bulgaria and Cyprus.

Friendship Instead of Reciprocity

For more than a decade, there has been a veritable row between the EU and the US over the question of visa exemptions for some EU Member State nationals. Unlike the nationals of most EU Member States, the citizens of some younger (albeit not actually young) Member States do not benefit from visa exemptions for travels to the US. While visa obligations were gradually lifted for Polish and Croatian citizens, restrictions remain in place for the citizens of Romania, Bulgaria and Cyprus. To remedy the fact that some EU citizens were thereby excluded from visa-free travel, the European Parliament had repeatedly called on the Commission to activate the so-called visa reciprocity mechanism found in Article 7 of the Visa Liberalisation Regulation, which would have suspended visa free travel of US citizens to the Schengen area. Following the Commission’s continuous refusal to do so, the European Parliament brought the matter to the attention of the Court.

The text of Article 7 provides that, once a third state introduces a visa requirement for nationals of at least one Member State, the Commission ‘shall adopt a delegated act’ to temporarily suspend visa liberalisation vis-à-vis nationals of that third state. The European Parliament had argued that the mandatory ‘shall’ language in this norm suggests that the Commission was under an obligation to suspend visa-free travel for US citizens. If the activation of the reciprocity mechanism were indeed mandatory, the Commission’s refusal to activate the mechanism would have constituted a breach of EU law.

There are, however, good reasons to endorse a different reading of Article 7 of the Visa Liberalisation Regulation. Particularly, the provision includes other sub-paragraphs, which provide that the Commission’s decision to activate the mechanism should be informed by considerations such as the viability of the external relations of the EU and its Member States with that third state (lit. (d)), and the steps taken ‘in the political, economic and commercial fields’ (lit.(b)). These provisions can be read as granting the Commission some discretion in determining whether to activate the reciprocity mechanism or not. Such an interpretation would undo the mandatory ‘shall’ language in Article 7 lit. (f) of the Visa Liberalisation Regulation, in as much as it renders the activation of the reciprocity mechanism conditional to additional considerations on the side of the Commission.

In this respect, the Commission’s refusal to suspend visa liberalisation appears to be first and foremost motivated by the desire to maintain good relations with the US. Politically, this appears sensible. Retaliation of the nature envisioned by the reciprocity mechanism would require US nationals to obtain a visa before travelling to the Schengen area which is both time-consuming and costly. Especially during the Trump presidency, it is safe to presume that such a step would have tainted the already strained transatlantic relationship. In legal terms, however, it raised the question whether considerations of transatlantic friendship could be a permissible consideration under the legal framework in place.

The Discretionary Nature of the Visa Reciprocity Mechanism

In its judgment in early September, the Court sided with the Commission, confirming that the Visa Liberalisation Regulation affords a measure of discretion in activating the reciprocity mechanism. In the light of the structure and context of Article 7, the Court argued that an obligation to automatically activate the reciprocity mechanism would render obsolete the other sub-sections of the provision. Given the ‘sensitive political nature’ (here, at para. 61) of such a retaliative measure, the Court concluded that the Commission should not be obliged to automatically activate the reciprocity mechanism.

This discretion, however, is not absolute. The Court emphasised that the Commission’s decision whether to activate the reciprocity mechanism must be governed by three criteria mentioned in the other headings of Article 7 of the Visa Liberalisation Regulation. Accordingly, the exercise of the Commission’s discretion must be motivated, first, by the measures taken by the Member State concerned to attain the objective of visa-free travel with the US; second, by its own efforts working towards the introduction of visa-free travel for the Member States concerned; and third, the consequences of visa retaliation for the external relations of the EU and its Member States. While the Court stressed the limiting capacity of these criteria for the Commission’s discretion, its review thereof remained remarkably lax. In the case at hand, it merely confirmed that the Commission ‘took into account’ these criteria (here, at para. 69), without examining in greater detail the motives underlying the Commission’s (in)action or whether the actions taken were suitable to attain that objective. This suggests that the Court does not wish to supersede the political choices of the Commission and prefers to carry out a very limited intensity of review of the latter’s discretion.

From the perspective of the European Parliament, this interpretation is regrettable. As the sub-headings in Article 7 of the Visa Liberalisation Regulation suggest, different rationales could have been detected in the legal design of the reciprocity mechanism. The mandatory ‘shall’ language in lit. (f) insinuates that activation of that mechanism should be automatic, whereas the other sub-headings in Article 7 appear to preclude such an automatic suspension of visa-free travel. The Court’s conclusion that the Commission should have discretion, however, was notably supported by an analysis of the travaux préparatoires of Regulation 1289/2013 – the instrument that first introduced the visa reciprocity mechanism. As Advocate General de la Tour had pointed out in his opinion on the case, the legislative drafting history of the norm refuted the assumption that the legislature had intended an automatic activation of the visa reciprocity mechanism. By affirming the Commission’s discretion in this regard, the Court accordingly opted for a doctrinally convincing interpretation of the Visa Liberalisation Regulation that respects, moreover, the functional necessities of visa law, especially the need to negotiate political solutions to conflicts over visa requirements.

Putting the Equality of EU Citizens Into Cold Storage

On a higher level of abstraction, however, this litigation throws into relief the disconnect that exists between supranationalised visa liberalisation policies of the EU, on the one hand, and the bilateral approaches that third countries may adopt in this regard, on the other. While the Commission is naturally inclined to advocate for visa exemptions for all EU citizens, this effort need not necessarily be successful. When third states choose to waive visa requirements for some EU Member States but not for others, the Commission is put in a difficult spot. Understandably, it may prefer a constructive, incremental approach towards the lifting of remaining restrictions. Yet, such a strategy will leave the citizens of the Member States concerned wondering whether EU institutions are working as fervently as they could to attain the objective of visa-free travel for all EU citizens. At what point will Romanians, Bulgarians and Cypriots get to benefit from the same visa-free travel regimes as their fellow citizens from other Member States?

In this sense, the Commission’s political strategy may be said to taint the equal treatment of EU citizens. To be sure, the difference in treatment between nationals of EU Member States in this regard results from the reluctance of the US to lift visa obligations for EU Member State citizens en bloc, not from the Commission’s (in)action per se. Nonetheless, by pursuing an incremental strategy, the Commission might be criticised for failing to attach the necessary urgency to the matter of visa liberalisation for the citizens of Romania, Bulgaria and Cyprus. The Court’s recent judgment does little to rectify this. The criteria guiding the Commission’s discretion that it highlights do not translate to strict limitations, let alone a positive obligation on the side of the Commission to intensify its efforts to bring about visa free travel for all EU citizens in the light of the principle of equal treatment of EU citizens. Rather, the Court largely endorses the Commission’s incremental approach, contenting itself with the fact that the Commission and US negotiators had met for work meetings on several occasions and were devising a new approach to the transatlantic partnership more generally. In this vein, the Court’s recent decision consolidates a situation in which the equality of EU citizens is put into cold storage.

The allegation of sporadic support of these Member States’ visa liberalisation is no trifle. Rather, it strongly resonates with a sentiment that citizens of Bulgaria and Romania may know all too well. Unlike citizens of other Member States that benefit from unchecked cross-border mobility, full Schengen accession of Romania and Bulgaria has been repeatedly delayed. While the question of visa liberalisation (in casu with the US) and Schengen accession are not formally linked, it is worth noticing that the US refuses to waive visa requirements precisely for those EU Member States that do not yet apply the Schengen acquis in full. It can therefore be argued that the debate surrounding Romania’s and Bulgaria’s Schengen accession may also bear on the decision of third states to waive the visa requirements for their nationals. As the Croatian government explicitly acknowledged, the prospect of full Schengen membership had paved the way for their inclusion in the visa waiver program of the US. Unfortunately, the latest ruling of the Court of Justice on the visa reciprocity mechanism does nothing to change the situation for the remaining Member States. For the time being, the passports of Romanian, Bulgarian and Cypriot citizens will continue to rank well below those of other EU Member States.